IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH )
WRIT PETITION (C) NO. 2973/2006
Sri Ajit Kumar Kakoti
Lecturer,
Son of Late Padmadhar Kakoti,
Assam Textile Institute,
Guwahati – 781 001.
-Versus1.
State of Assam
represented by the Commissioner & Secretary
to the Government of Assam,
Education (CTM) Department,
Dispur, Guwahati – 781 006.
2.
The Chief Secretary,
to the Government of Assam,
Dispur, Guwahati – 781 006.
3.
The Deputy Secretary,
to the Government of Assam,
Education (Higher) Department,
Dispur, Guwahati – 781 006.
4.
The Director,
Technical Education, Assam,
Kahilipara, Guwahati – 19.
5.
Shri Ashok Kumar Das
Lecturer (Senior Scale)
Assam Textile Institute,
Guwahati.
………. PETITIONER
………. RESPONDENT
BEFORE
THE HON’BLE MR. JUSTICE A.K. GOSWAMI
For the petitioner
:
Mr. K. K. Mahanta, Sr. Advocate.
For the respondents
:
Mr. K. Goswami, Advocate for respondent No. 5.
Ms. P. Bhattacharjee, Standing Counsel,
Education.
Dates of hearing
:
11.06.2013 and 14.06.2013
Date of judgement
:
14.06.2013
W.P.(C) No. 2973/2006
1
JUDGMENT AND ORDER ( ORAL )
Heard Mr. K. K. Mahanta, learned Sr. Counsel for the petitioner. Also
heard Mr. K. Goswami, learned counsel appearing for the respondent No. 5 and
Ms. P. Bhattacharjee, learned Standing Counsel, Education.
2.
The sole point for consideration in this case is as to whether the past
service of the petitioner in Assam Syntex Ltd, a Government of Assam
Undertaking can be taken into consideration for the purpose of counting his
seniority in Assam Textile Institute, a Government institute, from the date of
his appointment there as a Lecturer on 04.07.1994.
3.
The petitioner was appointed on 13.03.1996 as Sr. Technical Supervisor
in Assam Syntex Ltd., which is a sister concern of Assam Industrial
Development Corporation, in short, AIDC, also a Government of Assam
Undertaking. The petitioner is a graduate in Textile Engineering and had
initially joined as Management Trainee (Textile) in AIDC Ltd. 18.01.1985.
4.
During his tenure in the Assam Syntex Ltd., the petitioner earned certain
promotions, a detailed discussion of which is not relevant for this case.
Subsequently, the petitioner, pursuant to an advertisement, submitted his
candidature for his appointment as a Lecturer in Assam Textile Institute. He
having been selected and recommended by the Assam Public Service
Commission, in short, APSC, the petitioner joined as a Lecturer in Assam Textile
Institute on 04.07.1994 after letter of appointment was issued on 28.06.1994.
The date of joining in the Assam Textile Institute and his date of release from
Assam Syntex Ltd is the same i.e. 04.07.1994. By letter dated 03.05.1997, the
petitioner was also given pay protection under the provisions of FR 22-A
providing that the personal pay that was granted would be merged with the
next pay increment.
5.
The respondent No. 5 was initially appointed as a Lecturer on ad hoc
basis in March, 1990
and
subsequently, APSC having
selected
and
recommended him for being appointed as Lecturer in the Assam Textile
Institute, he joined there on 26.08.1992. A seniority list dated 17.10.2005 was
W.P.(C) No. 2973/2006
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prepared in which, the name of the petitioner was at Sl. No. 4 and the name of
the respondent No. 5 at Sl. No. 1. The respondent No. 5 was also given the
senior scale w.e.f. 26.08.2000. The petitioner had represented to carry forward
his past service to Assam Textile Institute for the purpose of seniority. The
representation of the petitioner was rejected by Order dated 21.01.2006
(Annexure – 21) by the Government on the ground that services rendered in
any establishment other then Government establishment cannot be counted
and therefore, the seniority has to be counted from the date of his joining as
Lecturer in Assam Textile Institute.
6.
Mr. K.K. Mahanta, learned Sr. Counsel for the petitioner submits that
while submitting his candidature for the post of Lecturer in Assam Textile
Institute in response to the advertisement issued by the APSC, the petitioner
had, as required by the said advertisement, submitted a No Objection
Certificate, a copy of which is also produced before the Court. As the petitioner
was selected in the interview held by APSC and as the petitioner was already in
public employment being in the services of a Government of Assam
Undertaking, it was ensured by both the authorities of the public sector
undertaking and the Government that there is no break in service. Therefore,
date of his joining in the Assam Textile Institute and date of his release from
Assam Syntex Ltd. was same. It is contended by the learned Sr. Counsel that
when pay protection was granted to him by the Government, there cannot be
any justifiable reason for not carrying forward the past service rendered by the
petitioner in the Assam Syntex Ltd. for the purpose of counting his seniority. It
is also urged by him that there being no dispute that the Assam Syntex Ltd. is a
public sector undertaking of Government of Assam, the reason cited for
rejecting the representation of the petitioner cannot be sustained.
7.
The learned Sr. Counsel also places reliance on a notification issued by
the All India Counsel for Technical Education (AICTE) (Annexure – 5) to
contend that counting of service outside the education institution subject to the
institution being one as enumerated in the notification, will be permissible to
accord the benefit of past service and to that extent, there is total non
application of mind on the part of the authorities while rejecting the prayer of
the petitioner. It is contended by him that by an office memorandum dated
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20.05.2004 (Annexure – 18), the Government of Assam had adopted the AICTE
notification dated 30.12.1999. He places reliance in support of his submission in
a judgment of the Apex Court rendered in the case of Tej N arain Tew ari Vs.
State of Bihar and Ors., reported in (1993) Supp (2) SCC 623 .
8.
The contentions of Mr. Mahanta is opposed by Mr. K. Goswami, learned
counsel for the respondent No. 5. At the outset, he raises the question of
maintainability of the writ petition on the ground that two of the Lecturers
senior to the petitioner have not been made party respondents. He submits
that even the respondent No. 5 was not arrayed as a party respondent and as
there was a potential of serious prejudice being caused to him in the matter of
seniority, he had filed application for impleadment as party respondent in this
proceeding and that is how, he is before this Court. His contention is that there
cannot be any manner of doubt that if any order is passed in favour of the
petitioner, surely and certainly, the two senior Lecturers as reflected in the
seniority list will be affected and therefore, they are necessary parties in this
proceeding and they being not arrayed as party respondents, the writ petition
is liable to be dismissed for non-joinder of necessary parties.
9.
Coming to the merits of the case, the learned counsel submits that grant
of pay protection is one thing and claim of seniority another. In a case where
pay protection is granted, the same does not affect, per-se, the rights of any
other individual, but in a case where claim for seniority is prayed, the grant
thereof may have adverse impact in the service career of an individual.
10.
Therefore, his contention is that grant of pay protection would not lead
to the inevitable conclusion that the petitioner is entitled to be accorded the
benefit of past service. It is also submitted by him that the Assam Technical
Education Service Rules, 1981, for short, the Rules, provide mechanism for
determination of seniority. According to him, Rule 22 holds the key for
resolving the dispute. There being no manner of doubt that the respondent No.
5 was a member in the cadre prior to the writ petitioner, there is no scope of
amalgamating past service rendered in Assam Syntex Ltd. and seniority of the
writ petitioner has to be counted from the date of his appointment in the
Assam Textile Institute. Mr. Goswami further submits that the petitioner had
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applied for the post of Lecturer in the Assam Textile Institute and he having
been selected, was appointed as Lecturer. It is a fresh appointment and has no
connection whatsoever with his previous employment and therefore, even if
there is no break between the date of his release from his earlier employment
and date of joining in the fresh assignment, the same will have no bearing and
is of no consequence. It is further urged by him that reliance placed on the
AICTE notification dated 30.12.1999 is misplaced, as the same, in any view of
the matter, cannot relate back to the year 1994 in absence of any stipulation
that the same would have retrospective effect. If it was so, the petitioner would
not have been even eligible to be appointed as Lecturer in Assam Textile
Institute because in view of the AICTE recommendation dated 30.12.1999,
eligibility criteria for appointment in a teaching post is a 1st class Bachelor
degree in appropriate branch of engineering technology or 1st class degree in
appropriate branch for teaching post in humanities and science, and admittedly
the petitioner is possessed of only 2nd division in his degree of Bachelor of
Textile. Mr. Goswami also submits that notification of AICTE on which reliance
was placed by Mr. Mahanta only provides for placement of Lecturer in senior
scale/selection grade subject to fulfilment of certain conditions if a Lecturer was
having previous continuous service. It is also submitted by him that by a letter
dated 19.07.1994 (Annexure – 11), the petitioner had prayed only for his pay
protection, which was granted and had not prayed for counting his service in
Assam Syntex Ltd. for fixation of his seniority and it is at a much belated stage,
in the year 2003, vide a letter dated 05.03.2003, such claim was raised. In
order to buttress his submission, the learned counsel has placed reliance on the
decisions of the Apex Court in Gurm al Singh and Ors Vs. State of Punjab
and Ors, reported in (1991) 1 SCC 189 and Surendra Singh Gaur Vs.
State of M P & Ors, reported in (2006) 10 SCC 214 .
11.
Ms. P. Bhattacharjee, learned Standing Counsel, Education, by relying
upon the affidavit filed, has contended that having regard to the Rules in force
and also having regard to the fact that the petitioner was not employed in
Government service, order dated 21.01.2006 cannot be faulted with.
12.
I have heard the learned counsel for the parties and have perused the
materials on record.
W.P.(C) No. 2973/2006
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13.
This Court does not consider it necessary to determine whether the writ
petition is liable to be dismissed for non-joinder of necessary parties in view of
the fact that the incumbent at Sl. No. 1 in the select list in the form of
respondent No. 5 is a party to the proceeding and is heard.
14.
Rule 22 of the Rules reads as follows:
“Seniority - (1)
The seniority of a member in a cadre, appointed by
direct recruitment or by promotion shall be determined
according to the order of merit in the respective Select List,
if he joins the appointment within 15 days from the date of
receipt of the order or within the extended period as
mentioned in Rule 19.
(2)
If a member fails to join the appointment within the
initial 15 days of receipt of the order or within the extended
period, as mentioned in Rule 19 but joins later, his seniority
shall be determined in accordance with the date of joining.
(3)
A member appointed by promotion in a year shall be
senior to a member appointed by direct recruitment in that
year.
(4)
The seniority of officers recruited for special post and
are continuing as such shall be determined by special orders
of the Government.
(5)
The seniority of members of a cadre mentioned in
Rule 3(1) but belonging to different branches of the cadre
shall be determined in accordance with the date of joining.
But in case two or more members join on the same date,
their inter-se seniority shall be determined in accordance
with date of birth.”
15.
Member is defined in Rule 2(f) of the Rules, to mean a member of the
Assam Technical Education Service. Necessarily, one can be a member of the
Assam Technical Education Service only after his appointment to the service.
The petitioner was directly recruited to the post of Lecturer in terms of Rule 6
of the Rules. The respondent No. 5 was also similarly directly recruited,
however, prior in point of time.
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16.
The petitioner had, for better prospects, decided to participate in the
selection process initiated by APSC for direct recruitment to the post of
Lecturer. No doubt, the Government had accorded pay protection to the
petitioner. This Court is inclined to accept the submission of Mr. Goswami that
grant of pay protection and fixation of seniority are in two different planes and
grant of pay protection, ipso facto, will not enable the petitioner to carry the
benefit of past service for counting of seniority in the new post. When it is a
case of direct recruitment, it will be difficult to visualise that past service could
be carried forward for the purpose of fixation of seniority as such interpretation
would result in causing violence to the provision of Rule 22. The AICTE
notification of 30.12.1999 does not also in any way help the cause of the
petitioner. At the relevant point of time, when the petitioner joined as Lecturer
in Assam Textile Institute, the said notification had not seen the light of the
day. That apart, Clause 9.0 of the AICTE notification, which was on the subject
of revision of pay scales and associated terms and conditions of service of
Teachers, Librarians and Physical Education Personnel for diploma level
technical institutions speaks of counting of qualifying service for career
advancement. Clause 9.2 thereof provides for counting of service outside the
institutions only for the purpose of placement of Lecturers in senior
scale/selection grade provided that the concerned Lecturer, amongst others, is
possessed of the minimum qualifications prescribed by AICTE for appointment
as Lecturers. Admittedly, the petitioner does not have such qualification as
prescribed.
17.
In Gurm al Singh (Supra), albeit in a different context, the Apex Court
had stated that to permit a claim of seniority of an employee who had been
inducted from Irrigation branch of the Public Works Department of Punjab to
the Punjab State Tubewell Corporation would result in injustice to those
employees whose seniority was based on their terms and conditions of service
with the Corporation which have been entered into a long time before the
transfer proposal came to be implemented. In Surendra Singh Gaur (Supra),
it was held that past service rendered by an employee in the earlier department
cannot be counted for the purpose of determining his seniority in the
department in which he was transferred and absorbed on his personal request.
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18.
The decision cited by Mr. Mahanta in Tej N arain Tew ari (Supra) relates
to a situation where service of an incumbent of a post was compulsorily
transferred to a new post consequent upon which the previous post held by
him was abolished and it was in that context, the Apex Court had stated that
past service had to be reckoned for the purpose of computing seniority. The
ratio is not applicable to the facts of this case. As has been noticed earlier, it
was a voluntary decision of the petitioner to apply for the post of Lecturer in
Assam Textile Institute. There was no office memorandum or notification at the
relevant point of time enabling a person employed in a public sector
undertaking to carry forward his past service should he be appointed in a
Government post. The relevant Rules also do not provide any scope for
accommodating the claim of the petitioner.
19.
In view of the above discussion, I find no merit in this application and
accordingly, the same is dismissed. No cost.
JUDGE
P.K. Sinha
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